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charging him under section 106A (a) of the Unemployment Insurance Act of Canada with having made false statements on April 26, 1960, and on May 10, 1960. He was convicted in a magistrates court in Ontario Province on a plea of guilty to all counts; on March 13, 1961, he was fined $55 and costs of each count. He last returned to the United States on April 25, 1961.

The record reveals that section 106A of the Unemployment Insurance Act of Canada, as amended, reads as follows:

Every person is guilty of an offense who

(a) in relation to any claim for benefit makes a statement or representation that he knows to be false or misleading or

(b) being required under this Act or the regulations to furnish information, furnishes any information or makes any representation that he knows to be false or misleading. (p. R-7.)

The special inquiry officer decided, both on the basis of the testimony of an expert witness and his own research, that moral turpitude was not involved because the section does not require a false statement to be material, and because a false statement is sufficient for a conviction although it may have only a remote relationship to the obtaining of insurance benefits. The special inquiry officer expressed the belief that the statute does not require a criminal intent. He found this fact especially significant because a prior law called for a criminal intent. The prior law, section 67 of the Canadian Unemployment Insurance Act of 1945, stated that the making of the false statement must be "for the purpose of obtaining any benefit or payment"; section 106A eliminates the language concerning the purpose for which the false statement is made. The special inquiry officer was also influenced by the fact that a person who had made false statements for the purpose of defrauding the government could apparently be prosecuted for false pretenses under sections 303 and 304 of the Criminal Code of Canada which do require criminal intent.

The examining officer contends that the difference in section 106A and its predecessor is not significant for both laws concern an attempt to gain a benefit by false or misleading statements. The examining officer reasons that since another provision of the insurance law provides for the imposition of an administrative penalty where a person has committed an offense described by section 106A, the institution of criminal action implies that the actionable statements were material to the claim for benefits. Reliance is also had upon legislative debate. At oral argument, the Service representative pointed out that in two cases involving false claims for unemployment insurance the Board found moral turpitude has been involved. Matter of L-, 5 I. & N. Dec. 705 and Matter of D-G-, 6 I. & N. Dec. 488 are cited. Counsel at oral argument requested that no change be made in the opinion of

the special inquiry officer but did ask that if the Board found moral turpitude existed, the case be returned to the special inquiry officer for ruling upon the respondent's request for a waiver under section 212 (g) of the Act.

Comparison between the present law and its predecessor, indicates that a conviction under the present law may be obtained without proof that the false statement was made for the purpose of obtaining benefits. In other words, a conviction can be obtained merely upon proof that a false statement had been made in connection with a matter relating to unemployment insurance benefits. An intent to mislead is not required; the only criminal intent required appears to be that there be knowledge of the falsity of the statement. Since the intent with which the false statement was made is no longer material, we cannot hold that moral turpitude is involved in the commission of the offense. Legislative debate relied upon by the examining officer is general and inconclusive. Matter of D-G-, supra, concerned a law which made an intent to defraud "an essential element of the offense". This element is lacking in the Canadian law in question. Matter of L—, supra, concerned violation of a California law which made it a crime to wilfully make a false statement or knowingly fail to disclose a material fact for the purpose of obtaining benefits. The conviction was under a law which the court of the state had construed required an intent to defraud.

ORDER: It is ordered that the appeal of the examining officer be and the same is hereby dismissed.

MATTER OF MAZAR

In DEPORTATION Proceedings

A-10425815

Decided by Board August 17, 1962

Respondent, a native and citizen of Yugoslavia, who obtained her visa by fraud and misrepresentation in willfully concealing her membership in the Communist Party of Yugoslavia from 1944 to 1954, is not deportable under section 241(f) of the Immigration and Nationality Act, as amended, since, apart from her misrepresentation, she was otherwise admissible at the time of entry, her Communist Party membership having been involuntary within the meaning of section 212(a) (28) (I) (i) of that Act because in order to safeguard her life she joined the Communist Party in response to demands made on her to join in view of her officer rank in the Yugoslav military forces and her continued service in the Yugoslav army after her marriage and the birth of her children was because of financial needs; there is an absence of any expression on her part of ideological sympathy with the Communist Party, and there is a lack of any indication that she ever occupied a position of political responsibility in the Communist Party itself.

CHARGES:

Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry under section 212(a) (19)-Visa obtained by fraud or by willfully misrepresenting a material fact.

Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at time of entry under section 212 (a) (28)-Member or affiliated with the Communist Party of a foreign state, to wit, the Communist Party of Yugoslavia.

The case comes forward upon certification by the special inquiry officer of his order dated May 31, 1962, terminating the proceedings.

The record relates to a native and citizen of Yugoslavia, 39 years old, female, married, who was admitted to the United States for permanent residence on August 9, 1955, upon surrender of a nonquota immigrant visa issued to her on June 29, 1955. Deportation proceedings were thereafter instituted charging that she was deportable because excludable at time of her entry in that her visa was obtained by fraud and or misrepresentation in concealing that she had been a member of the Communist Party of Yugoslavia from January 1944 to

about September 1, 1954, and also on the ground that she was excludable by reason of prior membership in the Communist Party of Yugoslavia. After hearing, the special inquiry officer on April 6, 1961, terminated the deportation proceedings upon a finding that the respondent's membership in the Communist Party of Yugoslavia was involuntary and, since she was otherwise admissible at the time of her entry, she was not subject to deportation on the visa fraud charge because of the provisions of the first portion of section 7 of the Act of September 11, 1957. Upon appeal by the examining officer the Board of Immigration Appeals by order dated October 19, 1961, reopened the proceedings for consideration of the case in the light of the new standard concerning misrepresentation laid down by the Attorney General in Matter of S- and B-C-, Int. Dec. No. 1168 (October 2, 1961). It was further directed that the decision of the special inquiry officer be certified to the Board.

The respondent has admitted that she was a member of the Communist Party of Yugoslavia from January 1944 to about September 1, 1954, and that in applying for her immigrant visa she knowingly and wilfully concealed her previous membership in the Communist Party of Yugoslavia because she believed the disclosure of that fact would result in the refusal of an immigrant visa by the American Consul. She also testified that she concealed such membership in her application for naturalization because she was afraid of being deported.

The situation herein is similar to that of the alien S- in Matter of S- and B-C-, Int. Dec. No. 1168, who likewise concealed Communist Party membership, albeit in Hungary, and who likewise defended such membership on the ground that it was involuntary within the meaning of section 212 (a) (28) (I) (i) of the Immigration and Nationality Act. The Attorney General held that it was obvious that disclosure of the alien's Communist Party membership in connection with his visa application would have raised a serious question as to the alien's admissibility and would have been likely to lead to further investigation of the question of whether his membership was voluntary or involuntary. The Attorney General stated that he was not required to decide the question of whether the alien's Communist Party membership was necessary to enable him to obtain employment, food rations or other essentials of living, or merely convenient in the sense that it facilitated his obtaining education and bettering his status in life, since it was obvious that had the alien stated the true facts in the application for his visa, it would inevitably have lead to investigation which might have lead to a proper denial of the visa. The Attorney General found that the alien's failure to disclose his Communist Party membership was a material misrepresentation

which rendered him excludable under section 212 (a) (19). However, the charge under section 212 (a) (19) is rendered moot in the instant case because the alien herein, as the spouse and parent of a United States citizen husband and minor child, is automatically entitled to the benefits of section 241(f) of the Immigration and Nationality Act, as amended, which provides that the provisions of that section relating to the deportation of aliens within the United States on the ground they are excludable at the time of entry as aliens who sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation, shall not apply to an otherwise admissible alien with the family ties that the respondent possesses.

It therefore becomes necessary to decide whether the respondent is otherwise admissible. Membership in the Communist Party of Yugoslavia has been admitted. The respondent seeks to excuse such membership on the ground it was involuntary within the meaning of section 212 (a) (28), which provides that the alien must establish to the satisfaction of the Attorney General that she falls within this exception.1

The evidence concerning the respondent's membership in the Communist Party of Yugoslavia is predicated upon her own testimony and the testimony of her husband. The special inquiry officer, as the trier of the facts, had an opportunity to observe the demeanor of the respondent and of her husband and to form a proper belief as to their credibility, and the weight to be attached to their testimony. Even though the testimony may be said to be in a sense, self-serving, in view of the finding of credibility, it cannot be lightly ignored. The respondent has explained the circumstances under which she joined the Yugoslavian Partisan Army in 1941. At that time, when between 18 and 19 years old, she set forth to look for her younger brother whom she found with an armed group composed of those who were fleeing from the Ustashi (Croation Fascists). This was not a regular army organization because at this period there was no regular national army existing in Yugoslavia. Her brother urged her to remain with him and join the group in order to avoid capture by the Ustashi. No political affiliation was necessary in order to become a part of this group. She testified that she and her brother were the only Slovenians in the organization, the rest of the group being composed of Serbians. Thereafter splits developed in the group and she and her brother were viewed with suspicion by some of the Chetniks in the group and defended by others. She and her brother joined a group of Chetniks who broke away from the organization and formed a Partisan force known as the Crnovrska Ceta. Later larger groups were formed and

1 Matter of V-, 8 I. & N. Dec. 554.

768-456-65

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